TGB Personal Injury Lawyer Olla Kutieleh covers all of the ins and outs of medical negligence claims, including whether or not you have a claim and for what you may be compensated.
Both the public and private health systems provide an invaluable service to our community, however, sadly from time to time things can and do go wrong. It has been reported that medical errors lead to 18,000 deaths each year and harm about 330,000 each year in Australia. (Medical Journal of Australia, 1995).
Personally and as a firm, we have extensive experience managing medical negligence claims. Our observations are that these claims commonly arise from:
1. Medical misdiagnosis;
2. Surgical errors, including poor post operative care;
3. Lack of warning about risks associated with a procedure or treatment;
4. Defective products;
5. Incorrect prescription or application of medication;
6. Inadequate patient supervision;
7. Wrongful birth;
8. Infection caused or contributed to by a lack of hygiene or poor standard of care.
Do I have a medical negligence claim?
In order to have a successful medical negligence claim you must establish three essential criteria, including:
1. Liability – it must be shown that a healthcare provider was negligent and breached their duty of care. If this is established, the health care provider can be liable for damages suffered.
2. Causation – that on the balance of probabilities the negligent treatment has caused or contributed to the injuries sustained or the loss of life. This is often the most complex and difficult criteria to establish particularly in light of recent High Court decisions which have tightened the criteria.
For example, the High Court decision in Tabet v Gett (2010), held that it must be established that the negligent conduct has caused the damage or loss that you have suffered on the balance of probabilities (more than 50% likelihood). A reduced chance of a better outcome does not alone attract an entitlement to compensation.
Furthermore, in the 2013 case of Wallace v Kam the High Court handed down a decision regarding the principles of causation in ‘duty to warn’ cases. The unanimous decision of the High Court in Wallace v Kam held that to establish causation in such cases, the patient would have to establish:
1. That the healthcare provider was negligent in that they failed to warn the patient of the material risks associated with the relevant treatment;
2. That had the patient been advised of that particular risk, the patient would not have selected to undergo or receive the relevant treatment;
3. That the material risk materialized i.e. the risk which the doctor did not warn against eventuated.
3. Damage – the loss or injury that you have suffered as a consequence of the negligent conduct.
What am I compensated for?
Compensation awarded for damages is commonly awarded as a single lump sum payment which takes into account:
1. Pain and suffering;
2. Loss of earning capacity;
3. Medical expenses;
4. Voluntary Services and Future Care i.e. Costs associated with assistance required with activities of daily living.
5. Consortium i.e. loss of companionship from a spouse or domestic partner.
In the sad circumstances where negligent medical conduct results in the loss of life, a claim may be made against the medical provider by certain family members. Such claims are known as a ‘dependency claims’.
I personally have assisted dependents including spouses, parents and children pursuing claims against the responsible healthcare provider for the avoidable loss of a loved one. These claims are generally for the loss of financial and domestic support that would have been provided by the deceased.
The assessment of damages for a dependency claim is a complicated process that can requires the use of actuaries and forensic accountants. The complexity in assessing damages in dependency claims has long been acknowledged by the Courts. A discussion of the inherent complexities is contained within the New South Wales 1892 judgment in White v The Australasian United Stream Navigation Company.
Where there has been an unexpected death while a person is under the care of the state i.e. in hospital or prison, the matter is generally referred to the State Coroner’s Office and a coronial inquest and investigation is undertaken to determine the cause of death. The findings of the Coroner will be very important in determining whether or not specific classes of relatives have a compensation claim.
Our firm has considerable experience in representing families with the Coronial Court process and if you are currently going through this process and require assistance or representation we recommend you can contact us for further advice.
There are time limits within which you must lodge your medical negligence claim with the Court. For adults, this time frame is three years from the time that the injury or negligent care occurs.
When the injury or negligence occured is not always evident where there has been a long medical history. Accordingly, it is best to seek expert legal advice as soon as possible.
Medical negligence is a complex area of the law and if you think that you or a loved one may have received negligent medical care resulting in injury or loss of life I recommend seeking expert legal advice.